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Bainbridge attorney: No conflict between city's proposed SMP and state law

Bainbridge Island's proposed update of its Shoreline Master Program doesn't conflict with state laws or rules or the city's comprehensive plan, the city attorney told the council and other officials last week.

The updated Shoreline Master Program, or SMP, has grown increasingly controversial in recent months. Shoreline property owners and others have claimed that the new regulations will ban all new docks, require property owners to plant trees that will block scenic water views, and impose larger-than-needed buffers and setbacks on existing properties. Some critics of the update have also claimed the new regulations conflict with state shoreline laws and regulations.

But in an April 16 memo to city officials, James Haney, an attorney for the city, said the draft SMP did not conflict with state law or the guidelines adopted by the Department of Ecology that provide guidance to local governments that are updating their shoreline programs.

"I have concluded that the draft of the SMP update that I have received from staff is consistent with the SMA [Shoreline Management Act] and with the DOE guidelines," Haney wrote in the memo to the city council, city manager and planning department officials.

"In a very few limited instances, I have suggested changes to improve consistency," he added.

Haney also wrote that he could not find any inconsistency between the draft SMP and the city's comprehensive plan, the document that guides growth and development on Bainbridge Island.

In a 14-page analysis that accompanied his memo, Haney addressed the proposed update section by section to note its consistency with state laws and regulations.

Haney attached several caveats to his analysis, which largely corresponds to criticism that a scientific basis is lacking for some of the city's proposed changes.

"Local governments are required to base their SMPs on the most current, accurate and complete scientific and technical information available," Haney noted.

"I am not a scientist and so cannot vouch for the accuracy and completeness of any of the information incorporated in this section, but if it meets the requirements, then use of it as the basis for the SMP is consistent [with state requirements]," Haney said.

Haney also countered the notion that property owners would be forced to plant trees and new vegetation on already developed properties.

The attorney said that section of the program "does not require any particular development to engage in restoration activities."

The plan makes it clear, he said, that restoration of degraded properties "is voluntary and to be encouraged through incentive programs. Restoration is not a forced activity in this section."

Islanders worried about the new SMP have also raised concerns that the new regulations are an unconstitutional "taking" of private property for a public good.

Dennis Young, an attorney who is presenting waterfront property owners with land on Blakely Harbor, Mazanita Bay, Port Madison, Eagle Harbor, Point Monroe and other areas on the island, has asked the city to prepare an analysis on the constitutional issue, and allow public comment on the study before the council begins deliberations on the updated SMP.

Haney, the attorney from the law firm of Ogden Murphy Wallace who was asked to review the updated plan for consistency with state law, was also tasked with completing an analysis on whether the new SMP would result in an unconstitutional taking of private property.

Haney provided that analysis to city officials privately last week. It was kept confidential, he noted, to preserve attorney-client privilege.

Councilwoman Kirsten Hytopolous said Monday she had not yet read Haney's analysis, but said she was not worried that the proposed regulations go too far.

"I personally don't have any concerns about takings," Hytopolous said.

"I just continue to believe that we have a moderate SMP. I don't think that we are pushing the envelope," she said.

Bainbridge first adopted its SMP in 1996, and the state is requiring Bainbridge and other governments across the state to update their shoreline programs, using the new guidelines from the state.

The updated plan is the result of more than three years of task force and workgroup meetings, educational forums, committee reviews, study sessions and council meetings. Talk on the update started in 2009, and the city's planning commission finished its draft plan in May 2012.

A final public hearing is planned for May 8, but the council is not planning to discuss the SMP at length at that meeting. Instead, the council is expected to revisit the SMP once more at its meeting May 15 for any final decisions.

The council is expected to adopt the revised SMP at its meeting June 12.

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